Bascos vs. Court of Appeals

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318
SUPREME COURT REPORTS ANNOTATED

Bascos vs. Court of Appeals
*
G.R. No. 101089. April 7, 1993.
ESTRELLITA M. BASCOS, petitioner, vs. COURT OF

APPEALS and RODOLFO A. CIPRIANO, respondents.
Civil Law; Common Carriers defined.Article 1732 of the
Civil Code defines a common carrier as (a) person, corporation or
firm, or association engaged in the business of carrying or
transporting passengers or goods or both, by land, water or air,
for compensation, offering their services to the public. The test to
determine a common carrier is whether the given undertaking is
a part of the business engaged in by the carrier which he has held
out to the general public as his occupation rather than the
quantity or extent of the business transacted. In this case,
petitioner herself has made the admission that she was in the
trucking business, offering her trucks to those with cargo to move.
Judicial admissions are conclusive and no evidence is required to
prove the same.
Same; Same; No distinction between person offering service on
regular basis and one offering service on occasional basis.But
petitioner argues that there was only a contract of lease because
they offer their services only to a select group of people and
because the private respondents, plaintiffs in the lower court, did
not object to the presentation of affidavits by petitioner where the
transaction was referred to as a lease contract. Regarding the first
contention, the holding of the Court in De Guzman vs. Court of
Appeals is instructive. In referring to Article 1732 of the Civil
Code, it held thus: The above article makes no distinction
between one whose principal business activity is the carrying of
persons or goods or both, and one who does such carrying only as
an ancillary activity (in local idiom, as a sideline). Article 1732
also carefully avoids making any distinction between a person or
enterprise offering transportation service on a regular or
scheduled basis and one offering such service on an occasional,
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episodic or unscheduled basis. Neither does Article 1732

distinguish between a carrier offering its services to the general
public, i.e., the general community or population, and one who
offers services or solicits business only from a narrow segment of
the general population. We think that Article 1732 deliberately
refrained from making such distinctions.
Same; Same; Obligation of carrier to observe extraordinary
diligence; Presumption of negligence.Common carriers are
obliged to
_______________
*
SECOND DIVISION.
319
VOL. 221, APRIL 7, 1993
319
observe extraordinary diligence in the vigilance over the goods

transported by them. Accordingly, they are presumed to have
been at fault or to have acted negligently if the goods are lost,
destroyed or deteriorated. There are very few instances when the
presumption of negligence does not attach and these instances are
enumerated in Article 1734. In those cases where the
presumption is applied, the common carrier must prove that it
exercised extraordinary diligence in order to overcome the
presumption.
Same; Same; Same; Liability arising from hijacking.To
exculpate the carrier from liability arising from hijacking, he
must prove that the robbers or the hijackers acted with grave or
irresistible threat, violence, or force. This is in accordance with
Article 1745 of the Civil Code which provides: Art. 1745. Any of
the following or similar stipulations shall be considered
unreasonable, unjust and contrary to public policy: x x x x x x (6)
That the common carriers liability for acts committed by thieves,
or of robbers who do not act with grave or irresistible threat,
violence or force, is dispensed with or diminished.
PETITION for review on certiorari of the decision of the

Court of Appeals.
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The facts are stated in the opinion of the Court.

Modesto S. Bascos for petitioner.
Pelaez, Adriano & Gregorio for private respondent.
CAMPOS, JR., J.:
**
This is a petition for review on certiorari of the decision of

the Court of Appeals in RODOLFO A. CIPRIANO, doing
business under the name CIPRIANO TRADING
ENTERPRISES, plaintiff-appellee, vs. ESTRELLITA M.
BASCOS, doing business under the name of BASCOS
TRUCKING, defendant-appellant, C.A.-G.R. CV No.
25216, the dispositive portion of which is quoted
hereunder:
_______________
**
July 17, 1991; penned by Associate Justice Nicolas P. Lapea, Jr.,
and concurred in by Associate Justices Ricardo L. Pronove, Jr., and

Consuelo V. Santiago.
320
320

PREMISES considered, We find no reversible error in the

decision appealed 1from, which is hereby affirmed in toto. Costs
against appellant.
The facts, as gathered by this Court, are as follows:

Rodolfo A. Cipriano representing Cipriano Trading
Enterprise
(CIPTRADE for short) entered into a hauling
2
contract with Jibfair Shipping Agency Corporation
whereby the former bound itself to haul the latters 2,000
m/tons of soya bean meal from Magallanes Drive, Del Pan,
Manila to the warehouse of Purefoods Corporation in
Calamba, Laguna. To carry out its obligation, CIPTRADE,
through Rodolfo Cipriano, subcontracted with Estrellita
Bascos (petitioner) to transport and to deliver 400 sacks of
soya bean meal worth P156,404.00 from the Manila Port
Area to Calamba, Laguna at the rate of P50.00 per metric
ton. Petitioner failed to deliver the said cargo. As a
consequence of that failure, Cipriano paid Jibfair Shipping
Agency the amount of the lost goods in accordance with the
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contract which stated that:

1. CIPTRADE shall be held liable and answerable for any loss in
bags due to theft, hijacking and non-delivery3 or damages to the
cargo during transport at market value. x x x
Cipriano demanded reimbursement from petitioner but the

latter refused to pay. Eventually, Cipriano filed a
complaint for a sum of money
and damages with writ of
4
preliminary attachment for breach of a contract of
carriage. The prayer for a Writ of 5Preliminary Attachment
was supported by an affidavit which contained the
following allegations:
4. That this action is one of those specifically
mentioned in Sec. 1, Rule 57 of the Rules of Court,
whereby a writ of preliminary
_______________
1
Rollo, p. 59.
Annex K of Memorandum for Petitioner; Rollo, p. 229.
Ibid.
Civil Case No. 49965, Regional Trial Court, Quezon City, Branch 83.
Annex L of Memorandum for Petitioner; Rollo, p. 230.

321
VOL. 221, APRIL 7, 1993
321
attachment may lawfully issue, namely:

(e) in an action against a party who has removed or
disposed of his property, or is about to do so, with
intent to defraud his creditors;
5. That there is no sufficient security for the claim
sought to be enforced by the present action;
6. That the amount due to the plaintiff in the aboveentitled case is above all legal counterclaims;
The trial court granted the writ of preliminary attachment
on February 17, 1987.
In her answer, petitioner interposed the following
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defenses: that there was no contract of carriage since

CIPTRADE leased her cargo truck to load the cargo from
Manila Port Area to Laguna; that CIPTRADE was liable to
petitioner in the amount of P11,000.00 for loading the
cargo; that the truck carrying the cargo was hijacked along
Canonigo St., Paco, Manila on the night of October 21,
1988; that the hijacking was immediately reported to
CIPTRADE and that petitioner and the police exerted all
efforts to locate the hijacked properties; that after
preliminary investigation, an information for robbery and
carnapping were filed against Jose Opriano, et al; and that
hijacking, being a force majeure, exculpated petitioner from
any liability to CIPTRADE.
***
After trial, the trial court rendered a decision the
dispositive portion of which reads as follows:
WHEREFORE, judgment is hereby rendered in favor of plaintiff
and against defendant ordering the latter to pay the former:
1. The amount of ONE HUNDRED FIFTY-SIX THOUSAND
FOUR HUNDRED FOUR PESOS (P156,404.00) as an
(sic) for actual damages with legal interest of 12% per cent
per annum to be counted from December 4, 1986 until
fully paid;
2. The amount of FIVE THOUSAND PESOS (P5,000.00) as
and for attorneys fees; and
3. The costs of the suit.
_______________
***
Civil Case No. 49965, October 12, 1989, Penned by Judge Reynaldo Roura.
322
322

The Urgent Motion To Dissolve/Lift preliminary Attachment

dated March 10, 1987 filed by defendant is DENIED for being
moot and academic.6
SO ORDERED.
Petitioner appealed to the Court of Appeals but respondent

Court affirmed the trial courts judgment.
Consequently, petitioner filed this petition where she
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makes the following assignment of errors; to wit:

I. THE RESPONDENT COURT ERRED IN
HOLDING
THAT
THE
CONTRACTUAL
RELATIONSHIP BETWEEN PETITIONER AND
PRIVATE RESPONDENT WAS CARRIAGE OF
GOODS AND NOT LEASE OF CARGO TRUCK.
II. GRANTING, EX GRATIA ARGUMENTI, THAT
THE FINDING OF THE RESPONDENT COURT
THAT THE CONTRACTUAL RELATIONSHIP
BETWEEN
PETITIONER
AND
PRIVATE
RESPONDENT WAS CARRIAGE OF GOODS IS
CORRECT, NEVERTHELESS, IT ERRED IN
FINDING PETITIONER LIABLE THEREUNDER
BECAUSE THE LOSS OF THE CARGO WAS DUE
TO FORCE MAJEURE, NAMELY, HIJACKING.
III. THE RESPONDENT COURT ERRED IN
AFFIRMING THE FINDING OF THE TRIAL
COURT THAT PETITIONERS MOTION TO
DISSOLVE/LIFT THE WRIT OF PRELIMINARY
ATTACHMENT HAS BEEN RENDERED MOOT
AND ACADEMIC BY THE
DECISION OF THE
7
MERITS OF THE CASE.
The petition presents the following issues for resolution: (1)
was petitioner a common carrier?; and (2) was the
hijacking referred to a force majeure?
The Court of Appeals, in holding that petitioner was a
common carrier, found that she admitted in her answer
that she did business under the name A.M. Bascos
Trucking and that said admission dispensed with the
presentation by private respondent, Rodolfo Cipriano, of
proofs that petitioner was a common carrier. The
respondent Court also adopted in toto the trial
_______________
6
Rollo, p. 217.
Rollo, p. 16.
323
VOL. 221, APRIL 7, 1993
323

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courts decision that petitioner was a common carrier.

Moreover, both courts appreciated the following pieces of
evidence as indicators that petitioner was a common
carrier: the fact that the truck driver of petitioner, Maximo
Sanglay, received the cargo consisting of 400 bags of soya
bean meal as evidenced by a cargo receipt signed by
Maximo Sanglay; the fact that the truck helper, Juanito
Morden, was also an employee of petitioner; and the fact
that control of the cargo was placed in petitioners care.
In disputing the conclusion of the trial and appellate
courts that petitioner was a common carrier, she alleged in
this petition that the contract between her and Rodolfo A.
Cipriano, representing CIPTRADE, was lease of the truck.
She cited as evidence certain affidavits which referred to
the contract 8as lease. These affidavits were
made by
9
Jesus Bascos and by petitioner herself. She further
averred that Jesus Bascos confirmed in his testimony
his
10
statement that the contract was a lease contract. She also
stated that she was not catering to the general public.
Thus, in her answer to the amended complaint, she said
that she does business under the same style of A.M. Bascos
Trucking, offering her trucks for lease to those who have
cargo to move, not to the general public but to a few
customers11 only in view of the fact that it is only a small
business.
We agree with the respondent Court in its finding that
petitioner is a common carrier.
Article 1732 of the Civil Code defines a common carrier
as (a) person, corporation or firm, or association engaged
in the business of carrying or transporting passengers or
goods or both, by land, water or air, for compensation,
offering their services to the public. The test to determine
a common carrier is whether the given undertaking is a
part of the business engaged in by the carrier which he has
held out to the general public as his occupation rather than
the quantity or extent of the business
_______________
Petition, pp. 12-13; Rollo, pp. 20-21; Annex G of Memorandum for
Petitioner; Rollo, p. 225.

9
Petition, pp. 13-14; Rollo, pp. 21-22.
10
Ibid.; Rollo, p. 21; Annex E of Memorandum for Petitioner; Rollo, p.
222.
11
Court of Appeals Decision, p. 5; Rollo, p. 55.
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324
324

12
transacted. In this case, petitioner herself has made the

admission that she was in the trucking business, offering
her trucks to those with cargo to move. Judicial admissions
are conclusive
and no evidence is required to prove the
13
same.
But petitioner argues that there was only a contract of
lease because they offer their services only to a select group
of people and because the private respondents, plaintiffs in
the lower court, did not object to the presentation of
affidavits by petitioner where the transaction was referred
to as a lease contract.
Regarding the first contention, the holding
of the Court
14
in De Guzman vs. Court of Appeals is instructive. In
referring to Article 1732 of the Civil Code, it held thus:
The above article makes no distinction between one whose
principal business activity is the carrying of persons or goods or
both, and one who does such carrying only as an ancillary activity
(in local idiom, as a sideline). Article 1732 also carefully avoids
making any distinction between a person or enterprise offering
transportation service on a regular or scheduled basis and one
offering such service on an occasional, episodic or unscheduled
basis. Neither does Article 1732 distinguish between a carrier
offering its services to the general public, i.e., the general
community or population, and one who offers services or solicits
business only from a narrow segment of the general population.
We think that Article 1732 deliberately refrained from making
such distinctions.
Regarding the affidavits presented by petitioner to the

court, both the trial and appellate courts have dismissed
them as self-serving and petitioner contests the conclusion.
We are bound by the appellate courts factual conclusions.
Yet, granting that the said evidence were not self-serving,
the same were not sufficient to prove that the contract was
one of lease. It must be understood that a contract is what
the law defines it 15
to be and not what it is called by the
contracting parties. Furthermore, petitioner pre_______________
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12
4 AGBAYANI, COMMENTARIES AND JURISPRUDENCE ON THE
COMMERCIAL LAWS OF THE PHILIPPINES, 5 (1987).

13
Solivio vs. Court of Appeals, 182 SCRA 119 (1990).
14
168 SCRA 612 (1988).
15
Schmid and Oberly, Inc. vs. RJL Martinez Fishing Corp., 166 SCRA
493 (1988).
325
VOL. 221, APRIL 7, 1993
325
sented no other proof of the existence of the contract16 of

lease. He who alleges a fact has the burden of proving it.
Likewise, We affirm the holding of the respondent court
that the loss of the goods was not due to force majeure.
Common carriers are obliged to observe extraordinary
diligence
in the vigilance over the goods transported by
17
them. Accordingly, they are presumed to have been at
fault or to have acted negligently
if the goods are lost,
18
destroyed or deteriorated. There are very few instances
when the presumption of negligence does not attach
and
19
these instances are enumerated in Article 1734. In those
cases where the presumption is applied, the common
carrier must prove that it exercised extraordinary diligence
in order to overcome the presumption.
_______________
16
Imperial Vitory Shipping Agency vs. NLRC, 200 SCRA 178 (1991).
17
Art. 1733. Common carriers, from the nature of their business and
for reasons of public policy, are bound to observe extraordinary diligence

in the vigilance over the goods and for the safety of the passengers
transported by them, according to all the circumstances of each case.
Such extraordinary diligence in vigilance over the goods is further
expressed in articles 1734, 1735, and 1745, Nos. 5, 6, and 7, while the
extraordinary diligence for the safety of the passengers is further set forth
in articles 1755 and 1756.
18
Art. 1735. In all cases other than those mentioned in Nos. 1, 2, 3, 4,
and 5 of the preceding article, if the goods are lost, destroyed or

deteriorated, common carriers are presumed to have been at fault or to
have
acted
negligently,
unless
they
prove
that
they
observed
extraordinary diligence as required in article 1733.

19
Art. 1734. Common carriers are responsible for the loss, destruction,
or deterioration of the goods, unless the same is due to any of the following
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causes only:
(1) Flood, storm, earthquake, lightning, or other natural disaster or
calamity;
(2) Act of the public enemy in war, whether international or civil;
(3) Act or omission of the shipper or owner of the goods;
(4) The character of the goods or defects in the packing or in the
containers;
(5) Order or act of competent public authority.
326
326

In this case, petitioner alleged that hijacking constituted

force majeure which exculpated her from liability for20 the
loss of the cargo. In De Guzman vs. Court of Appeals, the
Court held that hijacking, not being included in the
provisions of Article 1734, must be dealt with under the
provisions of Article 1735 and thus, the common carrier is
presumed to have been at fault or negligent. To exculpate
the carrier from liability arising from hijacking, he must
prove that the robbers or the hijackers acted with grave or
irresistible threat, violence, or force. This is in accordance
with Article 1745 of the Civil Code which provides:
Art. 1745. Any of the following or similar stipulations shall be
considered unreasonable, unjust and contrary to public policy:
xxx xxx
(6) That the common carriers liability for acts committed by
thieves, or of robbers who do not act with grave or irresistible
threat, violences or force, is dispensed with or diminished;
21
In the same case, the Supreme Court also held that:

Under Article 1745 (6) above, a common carrier is held
responsibleand will not be allowed to divest or to diminish such
responsibilityeven for acts of strangers like thieves or robbers,
except where such thieves or robbers in fact acted with grave or
irresistible threat, violence or force. We believe and so hold that
the limits of the duty of extraordinary diligence in the vigilance
over the goods carried are reached where the goods are lost as a
result of a robbery which is attended by grave or irresistible
threat, violence or force.
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To establish grave and irresistible 22 force, petitioner

presented23 her accusatory affidavit,
Jesus Baseos
24
affidavit, and Juanito Mordens Salaysay. However,
both the trial court and the Court of Appeals have
concluded that these affidavits were not
_______________
20
Supra, note 14.
21
Ibid., p. 621.
22
Annex G of Memorandum for Petitioner; Rollo, p. 225; and Juanito
Mordens affidavit Annex H of Memorandum for Petitioner; Rollo, p. 226.

23
Annex E of Memorandum for Petitioner; Rollo, p. 222.
24
Annex H of Memorandum for Petitioner; Rollo, p. 226.

327
VOL. 221, APRIL 7, 1993
327
enough to overcome the presumption. Petitioners affidavit

about the hijacking was based on what had been told her
by Juanito Morden. It was not a first-hand account. While
it had been admitted in court for lack of objection on the
part of private respondent, the respondent Court had
discretion in assigning weight to such evidence. We are
bound by the conclusion of the appellate court. In a petition
for review on certiorari, We are not to determine the
probative value of evidence but to resolve questions of law.
Secondly, the affidavit of Jesus Bascos did not dwell on how
the hijacking took place. Thirdly, while the affidavit of
Juanito Morden, the truck helper in the hijacked truck,
was presented as evidence in court, he himself was a
witness as could be gleaned from the contents of the
petition. Affidavits are not considered the
best evidence if
25
the affiants are available as witnesses. The subsequent
filing of the information for carnapping and robbery
against the accused named in said affidavits did not
necessarily mean that the contents of the affidavits were
true because they were yet to be determined in the trial of
the criminal cases.
The presumption of negligence was raised against
petitioner. It was petitioners burden to overcome it. Thus,
contrary to her assertion, private respondent need not
introduce any evidence to prove her negligence. Her own
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failure to adduce sufficient proof of extraordinary diligence

made the presumption conclusive against her.
Having affirmed the findings of the respondent Court on
the substantial issues involved, We find no reason to
disturb the conclusion that the motion to lift/dissolve the
writ of preliminary attachment has been rendered moot
and academic by the decision on the merits.
In the light of the foregoing analysis, it is Our opinion
that the petitioners claim cannot be sustained. The
petition is DISMISSED and the decision of the Court of
Appeals is hereby AFFIRMED.
SO ORDERED.
Narvasa (C.J., Chairman), Padilla, Regalado and
Nocon,
_______________
25
Ayco vs. Fernandez, 195 SCRA 328 (1991).

328
328

Candido vs. Macapagal
JJ., concur.
Petition dismissed. Decision affirmed.
Note.In culpa contractual, the moment a passenger
dies or is injured, the carrier is presumed to have been at
fault or to have acted negligently, and this disputable
presumption may only be overcome by evidence that it had
observed extra-ordinary diligence or that the death or
injury of the passenger was due to a fortuitous event
(Philippine Rabbit Bus Lines, Inc. vs. Intermediate
Appellate Court, 189 SCRA 158).
o0o
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9/5/2014

SUPREME COURT REPORTS ANNOTATED

G.R. No. 101089. April 7, 1993.

ESTRELLITA M. BASCOS, petitioner, vs. COURT OF

episodic or unscheduled basis. Neither does Article 1732

VOL. 221, APRIL 7, 1993